State v. Marshall

Full title: STATE OF OHIO, Plaintiff-Appellant, vs. CHARLES MARSHALL…

Court: Court of Appeals of Ohio, Eighth District, Cuyahoga County

Date published: Jan 27, 2000

No. 75688 (Ohio Ct. App. Jan. 27, 2000)

Opinion

No. 75688.

Date of Announcement of Decision January 27, 2000.

CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-349190.

JUDGEMENT: Dismissed.

APPEARANCES:

William D. Mason, Esq., Cuyahoga County Prosecutor, By: Anthony J. Kellon, Esq., Edward M. Walsh, Esq., Assistant County Prosecutors, For plaintiff-appellant.

Stephen McGowan, Esq., William T. McGinty, Esq., For defendant-appellee.

OPINION

ANN DYKE, A.J.:

Appellant, the State of Ohio, is appealing the trial court's order (1) granting appellee, Charles Marshall's, motion in limine to preclude identification testimony of William Lain and Brianne Stewart; (2) granting appellee's motion in limine to preclude the admission of the co-defendant's statement; and (3) granting in part appellee's motion to exclude other acts evidence. This court lacks jurisdiction over this appeal because the prosecution failed to make the certifications required by Crim.R. 12 (J). See State v. Buckingham (1980), 62 Ohio St.2d 14.

Crim.R. 12 (J) states:

When the state takes an appeal as provided by law, the prosecuting attorney shall certify that: (1) the appeal is not taken for the purpose of delay; and (2) the ruling on the motion or motions has rendered the state's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed.

* * *

If an appeal pursuant to this division results in an affirmance of the trial court, the state shall be barred from prosecuting the defendant for the same offense or offenses except upon a showing of newly discovered evidence that the state could not, with reasonable diligence, have discovered before filing of the notice of appeal.

This court may reinstate the appeal upon full compliance with Crim.R. 12 (J). See In re Hester (1981), 1 Ohio App.3d 24; see, also, State v. Betram (1997), 80 Ohio St.3d 281, 284.

Accordingly, this case is dismissed. Costs to appellant.

CORRIGAN, MICHAEL J., CONCURS. BLACKMON, J., NOT PARTICIPATING.

_________________________________ ANN DYKE ADMINISTRATIVE JUDGE